Andrew Brown: 'Heresy by thought' claim misses the point in Andy Gray case

Andy Gray's sacking has provoked a lot of debate. Jeremy Clarkson, referring to a Monty Python sketch and apparently missing the point, referred to it as "heresy by thought", saying: "You could think a thought and someone could sack your for it… if a man wants to think that, then that's fine. You should be allowed to think what you want."

Of course, Gray was not sacked for what he thought. It was what he said and did that resulted in him being sent for an early bath. The law does recognise a difference.

Nonetheless, other supporters, including Richard Keys' wife, have claimed that it was just banter; that it was harmless. It is not known whether the assistant referee or female colleague involved in the incidents complained. If they did not complain, then what is the problem? Neither was subjected to a course of conduct or harassment. Or were they?

Harassment is defined under the Equality Act 2010 as follows: "A person (A) harasses another (B) if (a) A engages in unwanted conduct… and (b) The conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment."

It is a fairly wide test. Even where, as Gray claims to be the case here, there was no intention to cause offence, it may be enough for that to have been the effect of his actions. A one-off incident is enough. It is enough that a bystander feels offended even if the target of the comments does not. Therefore, regardless of the feelings of Gray's colleague and the assistant referee concerned, his behaviour may well amount to harassment.

However, what if nobody complained? What if nobody was offended? The conversation was a private conversation and neither it nor the incident with the microphone was intended to be broadcast. If there was no creation of an environment which somebody found to be "intimidating, hostile, degrading, humiliating or offensive", then there was no harassment. He has apologised. However, he has also instructed solicitors. So, was he unfairly dismissed? Or was it a fair "penalty" (sorry…)

Even in the absence of harassment, his behaviour might justify dismissal. Many employers might not have chosen to dismiss. However, that does not necessarily mean that the dismissal was "unfair". Sky only need to have acted "reasonably" in taking the decision to dismiss. Asking a female colleague to tuck a microphone into his pants is undoubtedly sexual behaviour which could have offended his colleague or another bystander. By the time he made the comments which could be heard by others, it was entirely outwith his control whether harassment claims might be brought against him and Sky. Given his profile, it was almost inevitable that such a claim would bring his employer into disrepute.Accordingly, it would be difficult to say that Sky acted in a way in which no reasonable employer would have done.

Even if he was unfairly dismissed, what could he do? He would have three months in which to bring a tribunal claim. However, the tribunal could only award him a maximum award of 75,560 as awards for unfair dismissal are capped. At 1.7 million-a-year, this only covers around two weeks' losses. He could claim a sum in lieu of notice pay in a breach of contract claim in the civil courts, but that would be capped by the length of his notice period. Only if he could show that he was fired for being a whistleblower or unlawfully discriminated against for example, would the cap on his losses be lifted.

Speculation relates his dismissal to the fact that he is suing the News of the World for alleged phone hacking (News of the World's owner News Corp having a large stake in Sky). Amidst such speculation, and with such high stakes, this may well be the route that he takes. If he were successful, in addition to loss of earnings, he would be entitled to an award to represent the "injury" to his feelings.

l Andrew Brown is a senior solicitor in Anderson Strathern's employment unit who advises employers and employees alike on all aspects of employment law.